The OIGs investigation of Whitehursts allegations
against FBI Laboratory chemists Lynn Lasswell and Roger Martz in
the World Trade Center case revealed no misconduct on the part of
either chemist. The draft report also finds that Whitehurst
"grossly overstated" his allegations against Donald
Haldimann and that a Christmas Party conversation which
Whitehurst considered "suppression of evidence"
ultimately "signified nothing." [Part Three, Section C
at 63.]

The remaining issues with regard to the World Trade Center
case focus upon explosives examiner, David Williams, the
principal examiner (PE) in the investigation. We found that the
draft reports discussion of the World Trade Center case
contained several findings with which we disagree, in whole or in
part. These matters and the bases for our objections are set
forth below.

OIG Finding: Williams gave inaccurate testimony
regarding whether the urea nitrate was made pursuant to Arabic
formulas from bomb-making books linked to defendants.

Response: Williams testified in the first-person that
he personally performed certain tasks, including following the
formulas from the defendants blue books to produce urea
nitrate. According to Williams and others present during the
Eglin Air Force Base project, Williams relied on the
chemists representation to him that the formula being used
was "the same" as that in the Arabic formula. Although
the chemists apparently indicated to the OIG that they do not
recall this conversation, two of the bomb technicians we
contacted did. [The bomb technicians, Ron Wirth and Dennis Durden
of the Jacksonville FBI office, stated that it was " common
knowledge " that the purpose of the Eglin experiment was to
" duplicate " the formula associated with the World
Trade Center defendants. They also agreed that Whitehurst was so
aware. ] Both of the bomb technicians agreed that Williams
specifically asked how the formulas compared because he would be
the one called to testify in that regard. The better approach at
trial, however, would have been for Williams to explain that he
is not a chemist and that he was told by a chemist that the
formulas were the same.

OIG Finding: Williams gave inaccurate testimony
regarding his role in the manufacture of urea nitrate.

Response: Again, Williams testified in the first-person
that he performed certain tasks during the Eglin experiment which
were actually performed by others. We disagree with the OIG,
however, as to the significance of this inaccuracy. While
Williams may havetestified in the first-person, he also made it
clear that several people were involved in the manufacturing
process. He even named them in his trial testimony. We do not
believe that, when viewed in its entirety, Williams
testimony misled the jury into believing that he alone
manufactured urea nitrate. [The lead prosecutor in the case, AUSA
Gil Childers, advised that neither he nor the jury were under the
impression that Williams individually and personally manufactured
urea nitrate. He also advised that Williams  first-person
testimony as to acts performed by others was inconsequential.]

The OIG also concludes that Williams was wrong to consider
himself a supervisor of the project because he did not determine
the types and amounts of chemicals to be added during the actual
mixing process. We disagree with the OIGs assessment in
this regard, as do the on-site bomb technicians we contacted. The
Jacksonville FBI Agents involved in the project considered
Williams to be the supervisor even though he did not direct the
chemists on the specifics of the mixture. [Agents Wirth and
Durden stated that Williams was " in charge " ; was
" running the show " ; " gave us our marching
orders " ; and " was there the whole time supervising.
"] In addition, Williams was the official PE in the World
Trade Center case and, as such, was ultimately responsible for
all of the Laboratorys work in connection with the case.

It is undisputed that Williams was responsible for assembling
the team that manufactured the urea nitrate at Eglin Air Force
Base. He personally requested that the Jacksonville Division of
the FBI assign two bomb technicians to the project. He also
coordinated their schedules and those of Eglin personnel on a
daily basis. As Steve Burmeister, another examiner, told the OIG,
Williams was responsible for supervising the logistics of the
project. We, therefore, find it reasonable for Williams to have
considered himself the supervisor and to refer to the individuals
involved in the project as "my workers." The OIG,
however, finds that Williams testimony in this regard
"manifests an intent to downplay the role of the others and
to aggrandize his own." [Part Three, Section C at 12.] We
disagree with this characterization and with the OIGs
speculation as to Williams intent.

The significance of Williams role, according to the
draft report, is that it reflects on his expertise in the
manufacture of urea nitrate. We disagree. Williams
testimony that he supervised the events at Eglin did not make him
"appear to be an expert" in the manufacture of urea
nitrate. [Id.] We believe, and AUSA Childers has confirmed, that
the jury was not misled as to Williams role or expertise in
the manufacture of urea nitrate.

OIG Finding: Williams testified beyond his expertise
regarding the defendants capability to make urea nitrate
and in a way that makes the testimony appear tailored to the most
incriminating result.

Response: While we understand the tendency of an expert
witness to try to respond to questions posed to him, we also
understand the need to resist such testimony. [See Section
III.A.9 below regarding changes the FBI Laboratory has adopted to
ensure that Laboratory personnel limit their testimony to their
areas of expertise.] The better approach in the World Trade
Center case would have been for Williams to defer these questions
to Steve Burmeister, the prosecutions expert witness on
chemistry issues. While the draft report questions Williams'
scientific calculations in determining the defendants' capability
to produce between 1,200 and 1,800 pounds of urea nitrate, it
concedes that any error in his calculations was inconsequential
to the case against the defendants. As the draft report notes,
had Williams accurately calculated the defendants
capability to make urea nitrate, "the result would have been
perfectly acceptable to the prosecutions theory of the
case." [Part Three, Section C at 22.] Furthermore, we object
to the OIG's commentary that Williams' calculations
"conveniently produced the exact amount of urea nitrate --
1,200 pounds -- that he later testified was used in the Trade
Center bombing." [Id. at 18.] Williams testified to a range
of 1,200 to 1,800 pounds and to "about 1,200 pounds."

We also maintain that the draft reports commentary that
Williams testimony appeared tailored to the most
incriminating result is speculative and should be omitted.

Response: Williams testified at trial that the velocity
of detonation (VOD) of urea nitrate is 14,000 feet per second
(fps) in smaller quantities and approaches 15,500 fps in larger
quantities. The recognized VOD of urea nitrate, however, is
11,155 to 15,420 fps. [Encyclopedia of Explosives and Related
Items (U.S. Armament Research and Development Command 1983, p.
U103). ]

We disagree with the draft reports commentary that
"[a]t best, the testimony was incomplete. At worst, it was
intentionally false." [Part Three, Section C at 26.]
According to Williams, he arrived at the 14,000 to 15,500 figure
after consulting several experts in the field. While the experts
told the OIG that they "did not recall" discussing the
VOD of urea nitrate with Williams,none of them stated
categorically that it did not happen. We therefore object to the
OIGs assertion that Williams testimony may have been
"intentionally false" when there is no evidence to
support such a claim. In the same vein, we find it inappropriate
for the OIG to express "grave doubts" about
Williams veracity. [Id.]

OIG Finding: Williams gave an invalid opinion
regarding the VOD of the main charge.

Response: Williams testified that the blast damage he
observed at the scene led him to conclude that the VOD of the
main charge was approximately 14,000 fps. [As noted in the draft
report, Williams testified at the Salameh trial that the VOD was
14,000 to 15,500 fps " with a little bit of give on each
side " ; at the Sheik Omar trial, that it was 14,000 fps
" with a bracket on both sides of a couple thousand feet
" ; and in a letter to the OIG, that it was " faster
than 11,000 and slower than 16,000 fps. " Part Three,
Section C at 29-30.] We agree with the OIG that a broader range
should have been given. We disagree, however, with the OIG's
criticism of Williams' methodology.

Williams cited numerous factors which he considered during his
assessment of the crime scene, including damage to vehicles,
concrete, steel-reinforcing rods, steel beams, other fragments of
metal, as well as the size of the crater, and pushing and heaving
effects. We believe such a visual examination is not only proper,
but necessary. The OIG, however, criticizes Williams for
filtering these observations through his 10 to 15 years
experience as an explosives examiner to produce his VOD estimate.
It calls such an assessment "an unscientific, unverifiable
process of intuition," lacking any empirical data. [Id. at
36.] We find such criticism of Williams methodology
inappropriate, especially in light of the following passage in
the draft report:

We have no doubt that an experienced explosive examiner may
properly draw certain inferences from observations at a crime
scene. For example, an experienced expert will be able to discern
the difference between the damage left by a high versus a low
explosive, and can differentiate the damage caused by a heaving
high explosive (like most commercial products) versus a brisant
(like most military explosives) high explosive. Similarly, an
observation of "pitting and cratering" will tell an
experienced expert that the explosive used was a high explosive
with a VOD typically in excess of 10,000 feet per second. Allof
this involves the use of experience to recognize certain
distinctive characteristics of explosive damage. [Id. at 38-39.]

We believe that the criticism of Williams methodology, i.e.,
assessing a crime scene and filtering it through his experience
to estimate VOD, is unfounded. It is the precision with which
Williams estimated the VOD that was improper, not the methodology
he applied.

OIG Finding: Williams gave invalid and misleading
opinions identifying the main charge that appear tailored to the
most incriminating result.

Response: Although the draft report finds that
Williams testimony about the limited type of explosives
that fit in the 14,000 to 15,500 fps range was "literally
correct," it expresses "concern" that the court
"may not have understood" that each type contains
numerous commercial products. [Id. at 43.] We believe the OIG is
overreaching in this criticism. There is nothing in the record to
suggest that the court was unclear on this matter. Furthermore,
if such were the case, Williams was available to answer
clarifying questions.

As for Williams identification of the main charge as
urea nitrate, we note, as did the OIG, that he testified
accurately on direct examination that the category of explosives
that fit his VOD estimate and the damage he observed included,
but was not limited to, urea nitrate. The OIG then criticizes
Williams for his responses during cross examination in which
defense counsel elicited Williams opinion that the main
charge was, in fact, urea nitrate. The questions posed by defense
counsel were admittedly unclear and opened the door to
Williams opinion that urea nitrate was the main charge.

We believe that the draft report unfairly criticizes Williams
for considering the results of the auxiliary searches in
formulating his response to defense questioning. Defense counsel
did not limit his questions to Williams observations at the
scene (as the prosecutor did) and, as a result, provided Williams
with an opening to consider the results of the searches. We
believe it is fundamentally unfair for the OIG to opine that
defense counsel "clearly meant" to limit the question
to Williams analysis of the crime scene and that Williams,
therefore, acted "unprofessionally" in not explaining
that he was also considering the search results. [Id. at 47-49.]
A trial is an adversarial proceeding and it is the responsibility
of counsel to formulate precise questions. The fact that defense
counsel failed to do so in this instance should not reflect on
Williams professionalism. Williams gave a truthful answer
to the question posed.

Finally, we object to the draft reports conclusion that
Williams testimony regarding the identification of the main
charge appeared "tailored to the most incriminating
result." [Id. at 63.] Had this been the case, Williams
testimony on direct examination by the prosecutor would have
categorically identified urea nitrate as the main charge, rather
than merely one of several possibilities. The fact that Williams
did not identify the main charge as urea nitrate until he was
asked an open-ended question on cross examination militates
against a conclusion that Williams tailored his testimony to
favor the prosecution.

Response: We agree that Williams was incorrect in
testifying that he was not dissatisfied with certain conclusions
in Whitehursts report. It is clear, however, that he
mistakenly believed defense counsel was questioning him about a
format change, not a substantive change, he had made to one of
Whitehursts reports. [The OIG, which found these format
changes to be " innocuous, " acknowledges that this was
the matter to which Williams referred in his testimony. Id. at
61.] The OIG concedes that defense counsels questions
"lack precision," but, again, holds Williams
accountable for making the appropriate interpretation.

B. Oklahoma City

The OIG findings regarding the Oklahoma City investigation
focus primarily on the conclusions formed by the PE, David
Williams, an explosives examiner in the Explosives Unit of the
FBI Laboratory. While the OIG concludes that Williams' report on
the bombing was flawed, we believe it is important to note that
these flaws reflect inadequate analysis and ineffective
management; they do not evidence individual misconduct. The
errors identified in the draft report involve Williams'
incomplete, categorical, and otherwise too specific conclusions.
Many of the changes which are already being implemented in the
Laboratory will ensure that such errors do not recur and that
conclusions are scientifically supportable and are not
overstated.

Finally, we note several statements within the OIG's
discussion of the Oklahoma City case with which we disagree.
These matters and the bases for our objections are set forth
below.

OIG Finding: Williams categorical
identification of the main charge as approximately 4,000 pounds
of ANFO was inappropriate.

Response: We agree that Williams should not have stated
categorically that the main charge consisted of
approximately 4,000 pounds of ANFO. We disagree, however, with
the draft reports suggestion that Williams tailored his
opinion to implicate the defendants by using prior knowledge of
the explosive components purchased by the defendant.

The draft report's use of the word "tailored" [Part
Three, Section G at 4.] unjustifiably suggests that Williams had
the specific intent to mislead when he rendered a categorical
opinion in his report that the main charge was approximately
4,000 pounds of ANFO without revealing that the opinion was based
in part on his knowledge of Nichols' purchases. There is nothing
in the record to suggest that this was anything other than a lack
of care and precision on the part of Williams in preparing his
final report.

The lack of an intent by Williams to mislead is supported by
the fact that in reaching the categorical conclusions in his
report that the main charge was approximately 4,000 pounds of
ANFO, Williams was verifying the preliminary opinion he had
reached before knowing of the results of the search of the
suspects' residences.

Williams arrived in Oklahoma City on the day of the explosion,
April 19, 1995. After observing the scene of the blast and the
surrounding areas, Williams formed the preliminary opinion that
the blast was caused by approximately 4,000 pounds of ANFO. This
opinion was based on the extent of damage he observed and his
assessment of the approximate VOD of the explosive. More
importantly, we have confirmed that no later than the morning
after the blast, Williams advised high-ranking FBI officials at
the scene, including Special-Agents-in-Charge (SACs) Weldon
Kennedy, Neil Gallagher, and James Adams, that he believed the
explosion was caused by approximately 4,000 pounds of ANFO. Each
of these SACs is certain that Williams expressed this opinion before
any suspect had been apprehended in connection with the bombing
and before any search of the suspects residences had
been conducted.

OIG Finding: Williams errors were all tilted
in favor of the prosecutions theory of the case.

Response: We disagree. In addition to stating this
finding in its conclusion, the draft report makes no fewer than
six references in its discussion of the Oklahoma City
investigation to Williams conclusions being biased in favor
of the prosecution. [Id. at 1 (Williams  conclusions are
" biased in favor of the prosecution " ); at 2 (his
statements " supported the prosecution  s theory of
the case " ); at 4 (he " appears to tailor the opinion
to evidence associated with the defendants " ); at 5 (his
opinion " appears tailored to present the case in a way most
incriminating to the defendants " ); at 7 (his opinion
" may have been tailored to conform to the evidence
associated with the defendants " ); and at 7 (his
conclusions " appear tailored to conform to evidence
associated with the defendants " ).]

We object to each of these references and believe that they
unfairly characterize Williams conclusions. As discussed
above, several of Williams conclusions which the OIG
portrays as being "tailored" to favor the prosecution
were reached prior to the development of any prosecution theory
in the case. Therefore, each of these references is speculative
and unwarranted given the fact-finding mission of the OIG and
should be deleted from the draft report.

C. Florida v. George Trepal

The draft report accuses Roger Martz of overstating the
significance of his identification of thallium nitrate after
examining adulterated Coca-Cola. We believe that Martzs
expert opinion that thallium nitrate had been added to the
Coca-Cola is supported by the forensic examinations performed in
this case [We agree that since ion chromatography (IC) was not
performed on Q3, Martz  s opinion should have been confined
to Q1 and Q2.] as well as Martzs own experience with
poisoning cases. [Although the draft report notes correctly that
Martz acknowledged that another examiner had originally
identified thallium in the Coca-Cola, the draft report is
incorrect when it implies that Martz did not identify thallium
himself. The SEM/EDXA results, directed and evaluated by Martz,
confirm the presence of thallium in Q1.] We further believe that
once Martz was qualified as an expert by the court, he was
permitted to give his expert opinion when asked.

As an initial matter, we take issue with the draft report's
characterization of Martzs "overstatement" in
this case as being similar to "what he did in the World
Trade Center case, where he concluded that mass spectrometry had
identified urea nitrate on certain evidence." [Part Three,
Section H13 at 1.] Although Martz was the Unit Chief who signed
the World Trade Center report, Lynn Lasswell originally authored
it. The OIG makes it appear, erroneously, that Martz was the
examiner who drew this conclusion about urea nitrate. While Martz
was certainly responsible as the Unit Chief for approving the
report, the OIG draft report unfairly places virtually all of the
blame for the error on Martz.

Based upon our review, discussed in detail below, we believe
that the draft report is wrong both in concluding that Martz
overstated the significance of his analytical results and also in
positing an erroneous scenario (not borne out by the tests) that
a mixture of thallium chloride/sodium nitrate had been added to
the Coca-Cola. If sodium nitrate had been added as one of the
adulterants, the SEM/EDXA elemental profile in Q1 would have
indicated an elevated level of sodium, which it did not.

While we concede certain deficiencies here, such as inadequate
notes and charts, we disagree with the assertion that "Martz
appeared to have a lower threshold of scientific proof than is
generally accepted in forensic science and to lack appropriate
scientific rigor in his approach to examinations." [Id. at
5.] This sweeping condemnation is especially harsh given the
variety of analytical techniques employed by Martz in this case
and the correctness of his ultimate conclusion. [The language at
the beginning of the OIG's discussion of Trepal which suggests
that Martz should have been more tentative in forming his
hypothesis and more open to alternative explanations of his
analytical results seems seriously misplaced in light of our
conclusions. This is especially so in light of Martz  s
concession on cross-examination that he could not, as a matter of
absolute certainty, exclude the possibility that the nitrate
could have come from some other substance. Of course, if the
nitrate anion arose from some other source, this scenario does
not account for the lack of ion chromatography to identify the
counterion associated with the thallium cation addition.] We have
set forth below the analysis by which Martz determined that
thallium nitrate had been added to the Coca-Cola at issue:

Martz initially screened Q1-Q3 and K61 with silver nitrate
(AgNO3) and barium chloride (BaCl2). [Although these reagents
were mistakenly recorded in Martz  s notes as " AgCl
" and " BaNO3. "] Silver nitrate reacts with free
halides (e.g., chloride ion) and barium chloride reacts
with the sulfate ion. In both cases, the questioned specimens and
the known specimen exhibited the same qualitative results [We
agree that the observations supporting the " same for all
" comment in Martz's notes should have been recorded.] --
these spot tests indicated no differences in any chloride ion or
sulfate ion concentrations between the questioned and the known
specimens.

Martz next tested the four specimens with the
diphenylamine/sulfuric acid reagent, which is a presumptive test
for nitrates. [A few other oxidizers (alkali halogenates,
chlorates, periodates, permanganates, persulfates, peroxides and
ferricyanides) will also give a positive reaction, as well some
organic nitro compounds.] In this instance, the spot test did
differentiate the questioned specimens from the known -- Q1-Q3
gave a positive response, while K61 was negative. The preliminary
conclusion at this early stage was that the anion added to the
questioned specimens is not chloride or sulfate.

Martz then submitted a dried sample of Q1 for examination by
x-ray diffraction (XRD). The match given for this specimen in the
instruments 32060-pattern library is for thallium chloride,
although the confidence level for this match, 4.9 out of 15.0, is
low. However, thallium nitrate is the least thermally stable of
the three thallium salts under discussion (the chloride, sulfate,
and nitrate), i.e., it is the first to decompose with
increasing temperature. This may also have had some impact on the
XRD analysis -- if the thalliumnitrate had been the thallium --
containing salt added to the questioned specimens, it may have
decomposed to some extent as Q1 was taken to dryness on the hot
plate, leaving the thallium cation to scavenge for available
anions, for example, chloride.

Next, Martz took samples from Q1 and K61 to dryness and
submitted them for examination by scanning electron microscopy
with energy dispersive X-ray analysis (SEM/EDXA). In addition to
these two specimens, standards of thallium chloride and thallium
sulfate were run. Thallium nitrate was not run because the SEM in
operation at that time was sensitive only to elements with atomic
number 11 (sodium) and higher, and thus would not have detected
nitrogen (N) or oxygen (O) of nitrate (NO3). In specimen Q1,
phosphorous, thallium, chlorine, and calcium were detected. When
this specimen was further heated, sodium and potassium were also
detected. The thallium chloride and sulfate standards gave the
expected thallium and chlorine as well as thallium and sulfur
peaks. The K61 specimen gave indications of phosphorous, sulfur,
chlorine, and calcium. The striking difference between the
questioned and known Coca-Cola specimens was that the former
contained thallium. At that point, it was of note that the Q1 and
thallium chloride standard thallium/chlorine ratios were
different (with Q1 being higher), which is consistent with the
chlorine evident in Q1 not being the result of the addition of
thallium chloride.

Specimens K61, K66, Q1 and Q2 were analyzed via liquid
chromatography (LC) with an ultraviolet detection system set to
optimize the caffeine sensitivity (273nm). The LCs
inability to differentiate the caffeine concentrations between
the Q and K specimens suggested that no appreciable dilution of
the questioned samples had taken place. This is consistent with a
powder, rather than a bulk liquid adulterant, being added to Q1
and Q2.

Mass spectrometry was twice applied in this case. In the first
instance, gas chromatography/mass spectrometry (GC/MS) in the
electron impact (EI) mode located caffeine (194 m/z) in Q1 as
well as K61. The two chromatograms are qualitatively the same.
[Apparently, the initial temperature/temperature ramping over the
course of the two injections was not the same since the retention
times for caffeine are 337 and 289 seconds, respectively.
However, the relative retention times for the numerous GC peaks
in Q1 appear to correspond to those on K61, and there is evidence
that Martz confirmed some of these. Since caffeine has a
retention time corresponding to about one third of a normal
toxicology screening analysis GC run, Martz  s analysis did
not rule out the possible presence of an organic foreign
substance with a retention time greater than the caffeine. ] In
the second application of mass spectrometry, negative ion
chemical ionization (methane) (NICI) direct exposure probe (DEP)
mass spectrometry was employed. This turned out to be of no real
utility since an analysis of a thallium sulfate standard resulted
in Martz's identification of a number of other thallium salts.
Thus, this technique would be useless for differentiating the
thallium salts under discussion here. A thallium nitrate standard
was run and found not to be stable under these conditions because
of its thermal decomposition sensitivity.

Finally, the most useful and revealing technique employed in
this examination was ion chromatography (IC). Specimens Q1, Q2,
K61, K66, a nitrate standard, as well as a water blank were run.
The striking difference between the questioned specimens and the
known specimen is that elevated levels of nitrate were indicated
in Q1 and Q2. No elevated level of the chloride anion, whose
position Martz provisionally established with the water blank,
was noted in the questioned specimens versus the known soft
drinks. This supports Martzs opinion that nitrate, rather
than chloride, was the anion associated with the thallium added
to the Coca-Cola. [While this argument is not as conclusive as it
might be because of the " congestion " in the region of
the chromatogram in which chloride elutes, it can fairly be
asserted that although there is congestion in the early eluters
in the ion chromatograms, had the chloride been present in the
concentrations approaching that of the nitrate anion observed,
that peak would have risen out of the manifold of early eluters,
making its presence known, and demanding an explanation. This
argument also rebuts the draft report  s suggestion of a
simultaneous thallium chloride/sodium nitrate addition to the
Coca-Cola.]

Moreover, while thallium sulfate -- the compound initially
mistakenly identified by the local Medical Examiners Office
as being present [This initial misidentification by the local
Medical Examiner  s Office was caught by Martz in his
initial screening with the silver nitrate, barium chloride, and
diphenylamine/sulfuric acid spot tests.] -- is 15 times as
soluble in water as thallium chloride, thallium nitrate is 25
times as soluble. Thus, thallium nitrate is the most efficient of
these three to employ as a poison. Also, at refrigerator
temperatures, had the thallium containing salt added to Q2 in
particular been thallium chloride, it would have been borderline
insoluble (on the edge of precipitating out), while thallium
nitrate has no solubility problems under these temperature and
concentration conditions. Finally, the experience of forensic
chemists who are familiar with poisoning cases suggests that it
is more likely that one, as opposed to two, adulterants will be
added to a substance in order to poison someone.

D. Avianca

The OIG's conclusions concerning the Avianca case (United
States of America v. Dandeny Munoz-Mosquera) pertain in large
part to the testimony of Richard Hahn, who testified as an FBI
explosives expert based upon his post-blast examination findings.
The draft report contains 40 pages devoted to the Avianca case,
including a detailed critique of Hahns trial testimony.
While the OIG concluded that Hahn committed "error" by
offering some opinions that under microscopic examination after
the fact [For example, the OIG's conclusion that Hahn
"slightly overstated his experience" when citing, as
prior experience, crime scene processing and assessments made
during the Pan Am 103 and World Trade Center cases, Part Three,
Section E at 25, mischaracterizes Hahn's claim of
"assessing" evidence as "analyzing" evidence
-- two very different processes. The OIG's conclusion that Hahn's
testimony in describing the location of different parts of the
aircraft "appears to require expertise that Hahn lacked. .
." ( id. at 26) ignores the fact that Hahn testified from
official Boeing diagrams and with the knowledge base of other
investigative team members.] lacked an adequatescientific basis
or were beyond his expertise, we are convinced that Hahn acted in
good faith and based his testimony on a number of factors that he
could properly rely on as an expert witness. Hahns
testimony, which was subject to cross examination, was not
material to the ultimate finding of guilt, since there were
numerous other witnesses who testified before Hahn and who
supported the prosecutions theory of the case. Furthermore,
as stated below, the draft report fails to note several factors
relied upon by Hahn in forming his conclusions which belie the
suggestion that his "errors" were intended to help the
prosecutions case. We suggest that the OIG reexamine its
findings regarding Hahn's testimony in Avianca. At a minimum, we
request that the OIG delete any suggestion that Hahn formed his
conclusions to support the prosecution's theory of the case.

OIG Finding: Hahn gave scientific opinions
correlating the pitting and cratering to a high velocity
explosive that were unsound and not justified by his experience
or by the scientific literature.

Response: Hahn's testimony regarding the pitting and
cratering has been taken out of context by the OIG. This
word-for-word reading of one aspect of Hahn's testimony does not
take into account its overall purpose and intent -- to describe
the extent of the observable physical damage to the plane, verify
the use of an explosive as the cause of the damage, and posit a
theory and expert opinion, based on his experience and empirical
knowledge, as to the type of explosive and the approximate VOD
that could have caused the observable damage, including the
pitting and the cratering.

The draft report states that, "taken literally,"
Hahn's testimony in the second trial indicated that he believed
pitting and cratering "can only occur with a "very high
explosive'--that is, an explosive with a VOD of about 20,000 feet
per second or more." [Id. at 9.] However, Hahn's testimony
was geared to photographs presented as exhibits at trial and,
therefore, his statement was focused on the pitting and cratering
found on the particular piece of evidence depicted in the
photograph presented by the prosecutor.

If Hahn's testimony is followed in sequence, it tracks a
series of photographic exhibits, which depict the particular
damage to Avianca Flight 203 indicating that an explosive device
had been used on the aircraft. For example, Hahn discussed the
missing double I-beam -- "shattered, broken away";
[Transcript at 2910.] the wing box cracked in half; [Id. at
2912.] the "very specific explosives damage" on pieces
of the aircraft shown in exhibits 623 to 626, namely the
shattering effect of a brisant explosive; [Id. at 2919.] and the
generation of jets of gases causing pitting and cratering. [Id.
at 2919. Hahn testified "that pitting and cratering is
unique to explosives -- high explosives functioning. There's
nothing else in the world that could cause it, and when you see
it, when you have been trained to look for it and recognize it,
there's nothing else that could have caused that." Id.]

Then Hahn pointed out the pitting and cratering on Exhibit 626
and stated in part: "High explosives did that damage. I'm
talking about a very high explosive here functioning in
the area of 20,000 feet per second. . . ." [Id. at 2920
(emphasis added).] He did not say that such pitting and cratering
can only occur with an explosive with a VOD of 20,000 feet
per second or more, only that the particular pitting and
cratering depicted in that exhibit was sufficiently unique to
have been caused by an explosive of that velocity. [In the first
trial, using a series of photographic exhibits, Hahn reviewed the
extent of the damage, commenting as follows: "[t]he fuselage
metal has been blasted out. It suffered severe blast damage here,
and it's therefore been misshapen." Id. at 2257. He also
noted "this particular piece of aircraft is so significant
because this has what we call pitting and cratering on it."
Id. at 2260. Finally, Hahn explained "that damage right
there is damage done by a functioning extremely hot explosive.
That is the only thing in the world that can do that kind of
damage. No drill, no impact, nothing like that will do that
particular type of damage. That is caused by extremely hot gasses
at extremely high pressure that actually come at the metal and
erode the metal away." Id. at 2261. ]

We recognize that drawing specific conclusions about VOD based
on observable blast damage is problematic due to a lack of
supporting scientific data. In this case, however, the draft
reports criticism that Hahns opinion, as seen with
the benefit of hindsight, was offered in an attempt to help the
prosecutions case is not justified. Hahn offered a broad
range for the VOD and a number of other factors supported the VOD
conclusions. For example, the draft report does not mention a
report issued by the Colombian criminalistics laboratory (signed
by a chemical engineer and an explosives technician) which Hahn
reviewed prior to testifying, and which also concludes that the
explosive had a VOD of from 20,000 to 23,000 feet per second. The
Colombian report states in pertinent part:

The marks of impact which appear on one of the metal sheets
that was collected and analyzed, show the effects of violent
collision with other metal flung with great force. This is a
physical action characteristic of high explosives traveling at a
velocity of 20,000 to 23,000 feet per second, that is 7,000-8,000
meters per second. Other metal parts, which were examined, did
not exhibit this type of impact. Only the tearing caused by the
strong impact, normally caused by a fall of elements from air to
land, was noticed. [See Policia Nacional Direccion de Policia
Judicial e Inteligencia, Atentado Terrorista Avion de Avianca
HK-1803, Discriminalistica Seccion Laboratorio , Conclusion at 7.
]

This report corroborates Hahn's conclusions and illustrates
that he was not alone in his view as to the approximate range of
the VOD.

The draft report further states that "Hahn's experience
was inadequate to support his opinion" that the large pits
were "necessarily caused" by a high explosive with a
VOD of at least 20,000 feet per second. [Part Three, Section E at
11.] While we agree that Hahn's opinion may have lacked adequate
supporting scientific data, Hahn did in fact have sufficient
experience to offer that opinion at that time. He had set off
charges in range tests at lower velocities under various
conditions and had never seen similar pitting and cratering. He
had, however, achieved such pitting with "shaped
charges." He also saw similar pitting and cratering in the
Pan Am 103 investigation. Given the nature of forensic explosive
examinations and the varied circumstances which the examiner must
confront, every incident will involve unique circumstances, which
must be interpreted in light of the explosives examiner's
knowledge and experience at the time. The fact that Hahn may not
have realized at the time he testified in Avianca that some
degree of pitting could be caused by an explosive with a lower
VOD does not suggest that his testimony was intended to buttress
the prosecutions case.

OIG Finding: Hahn erroneously failed to make
inquiries about the validity of his jetting theory before the
second trial.

Response: While Hahn could have made additional efforts
to validate his jetting theory before the second trial, that
aspect of his testimony was neither material to a finding of
guilt nor susceptible, at that time, to ready validation. Even
the Whitehurst memorandum on this issue expresses doubt about the
adequacy of the literature on pitting and cratering: "The
literature leaves us unsure about the detonation velocity/power
of high explosives required to cause pitting. . . ."
[Whitehurst memorandum at 2.] We think this section of the draft
report is unfairly critical and we request that the OIG
reconsider this finding.

OIG Finding: Hahn testified incorrectly and outside
his expertise concerning a fuel-air explosion, the injuries to
passengers, and other areas.

Response: The draft report criticizes Hahn for
testifying outside his area of expertise both with regard to a
fuel-air explosion and injuries to passengers. For the reasons
that follow, we believe both criticisms are unfounded and should
be modified.

Conclusions as to fuel-air explosion: The draft report
concludes that Hahn testified outside his expertise and
experience in the second trial [Part Three, Section E at 23.] by
citing his use of the terms "fuel-air explosion" and
"flash fire" interchangeably. Hahn stated at trial:
"That sort of damage was seen in this particular incident,
also again consistent with a flash fire or a fuel air
explosion." [Transcript at 2930-31.] At another point, in
describing the "potential" for a fuel/air explosion on
board an aircraft, he stated: "Simply put, a fuel air
explosion inside a diesel engine every time it fires you have a
mixture of fuel and air. You compress it, [it] gets hot, it flashes
over a fuel air explosion." [Id. at 2926 (emphasis
added).]

While Hahn may have confused the two terms during his
testimony, this does not support the OIG's suggestion that he
attempted to mislead the jury. [Hahn readily acknowledged to us
that he mistakenly used the two words interchangeably and that
they do not mean the same thing. The report of Mr. Walter
Korsgaard, FAA Program Manager, one of the individuals with whom
Hahn investigated the scene, discussed the damage typical of
"flashover" and "fuel-air explosion."
Korsgaard's report states: "Evidence indicated severe
burning in the area below the cabin floor and damage typical of
flashover in the passenger cabin area." "Technical
Investigative Findings of HK1803, Mr. Walter Korsgaard, FAA
Program Manager and National Resource Specialist for Aviation
Explosives Security," Notes for November 29. The next page
of the report discusses problems with the number 3 fuel tank
boost pump: "I believed that this pump could be a possible
fuel/air explosion initiation source. . . ." Id. , Notes for
December 1.] Both prosecutors in Avianca have informed us that
Hahn's role at trial was, at least in part, to summarize the
conclusions of other witnesses. That summary witness role was
apparently what led to some of Hahn's difficulty and we believe
the OIG is unnecessarily critical of Hahn in this regard.

The Avianca investigation was conducted by a team of
investigators, including National Transportation Safety Board
(NTSB) investigators, industry specialists, and agents of the
Federal Aviation Administration (FAA) who have explosives
background and training. The investigative team reached joint
conclusions, supported by the observable physical evidence.
Throughout most of his testimony, Hahn noted the joint effort by
frequently usingthe term "we" to preface his
discussion. [For example, "We did not find any other
evidence . . . as far as the high-powered device, . . . we still
. . . ." Transcript at 2925; "At this point we were
satisfied that a device had functioned . . . ." Id. at 2926.
Hahn did use some "I" statements in discussions
regarding fuel-air explosions. In the middle of that discussion,
he states: "Now, again, that's the type of blast damage I
would expect to find from a fuel air explosion." Id. at
2928. Then he was asked to "summarize for the jury what you
believe happened on November 27, 1989 to Avianca Flight
203." Id. at 2928. Although he began his answer: "what
I believe happened . . . ," later in the discussion Hahn
reverted to the pronoun "we." Id. at 2929. Thus, Hahn's
isolated uses of the term "I" appear to have been minor
misstatements.] As a result, we believe the OIG's conclusion that
"[w]e are troubled by Hahn's willingness to testify . . . to
areas about which he has no expertise and do so without making
known . . . findings of other experts" [Part Three, Section
E at 23.] is groundless in this context, where the prosecutors
themselves confirmed his use as a summary witness. The same is
true of the OIG's conclusion that Hahn's testimony is
"problematic" because Hahn is not an expert in
"fuel-air explosions." [Id. at 22.] As is apparent from
Hahn's entire testimony, he made a good faith attempt to
summarize other witness' findings fairly, even if he
unintentionally misspoke on some occasions.

Conclusions as to injuries to passengers: The OIG
concludes that Hahn's testimony regarding injuries to passengers,
which in the first trial he described as "consistent with
extreme heat, flash-fire type of damage" [Transcript at
2269.] and in the second trial as "consistent with a flash
fire or fuel-air explosion," [Id. at 2930-31.] were beyond
his expertise and incorrect. [Part Three, Section E at 23.] The
OIG further concludes that Hahn's "testimony about the
injuries was misleading, inaccurate, and outside his area of
expertise" and that "he improperly used this testimony
to support his theory of a fuel-air explosion." [Id. at 24.]

Hahn has informed us that he was used as a summary witness in
this regard as well and that he simply discussed the findings of
the medical examiner about which he was aware. In the first
trial, Hahn's testimony regarding passenger injuries was prompted
by the following question from the prosecutor: "Was there
other damage to the passengers or other parts of the plane that
were consistent with the physical findings and conclusions that
youhave just stated?" [Transcript at 2268.] Hahn's answer
began: "We were informed by the medical pathologist . .
." and ended with the comment quoted above, that the
injuries were "consistent with extreme heat . . . ."
[Id. at 2269.] His testimony in the second trial tracked a
similar course, beginning with: "In talking to the medical
examiners, they found damage to the bodies . . ." [Id. at
2930.] and concluding as quoted above, "again consistent
with a flash fire or fuel air explosion." [Id. at 2930-31.]

The report of the medical examiner (a pathologist) theorized
that both the loss of brain matter from the opened skulls and the
lesions and burns to the bodies were produced during (and caused
by) the explosions inside the aircraft. [That report (as
translated from Spanish) states in a relevant portion of its
"Summary": "Generalized explosion of head,
apparently produced during the explosion (supposition made
because no remains of the encephalic mass [brain tissue] was
found where the head was recovered." "1.13 Informacion
Medica y Patologica ," Informe de Accidente de Aviancio
," Departamento Administrativo de Aeronautica Civil Division
de Seguridad Aerea , Resumen at 29, ô 1.(d). Additionally, the
"Summary" includes the information that "the
lesions and the burns observed on the bodies were caused by an
explosion inside the airplane while it was still in flight and
subsequently was aggravated by the detonation of some type of gas
(oxygen, combustible vapors, or some other element)." Id. at
29, Resumen at ô 2.] Hahn informed us that he was aware of and
had reviewed that report, which was included in the lengthy
report of the "Air Security Division of the Department of
Civil Aeronautics." [Report of the Departamento
Administrativo de Aeronautica Civil Division de Seguridad Aerea
.] In addition, the medical examiner testified at the trials. If
the report of the medical examiner (and it is assumed his
testimony at the trials was the same as the report) is to be
accepted as true, then the following statements in the draft
report are not accurate: "Essentially, the injuries to the
bodies told Hahn nothing about whether a fuel-air explosion
occurred; they only told him that an intense fire burned for a
period of time. This is quite different from his testimony that
the injuries to the bodies were consistent with a flash fire or
fuel-air explosion." [Part Three, Section E at 24.] Hahn was
only called upon to testify to the compatibility of the injuries
with his theory of the cause of the damage to the aircraft. The
purpose of Hahn's testimony was not to describe the extent of the
damage to the bodies, but merely to give an opinion as to whether
the injuries were consistent with the events believed to have
occurred on board the aircraft. The jury was able to evaluate his
testimony in light of that given by the medical examiner.

Response: The draft report faults Hahn for giving
incomplete testimony regarding a memorandum prepared by
Whitehurst. The draft also concedes, however, that "the
impact of Hahn's failure to mention the opinions in the document
was insignificant." [Id. at 15.] If, as the draft report
notes, the Whitehurst memorandum was a "deeply flawed"
document and that "Hahn's failure to mention the opinions in
the document was insignificant," [Id.] then we believe that
criticism of Hahn for "incomplete testimony" in failing
to mention those opinions is unsupported. Hahn's testimony at
trial was responsive to the questions asked.

The Whitehurst memorandum was not a Laboratory report, and
should not be considered one. [As an indication of the way the
Whitehurst memorandum was regarded by management, we note that
Corby stated in his memo to James Kearney that "Whitehurst's
memo to me is not a report . . . ." Memorandum dated 7/6/94
at 3 (emphasis in original).] Moreover, the information included
in the document did not change the results of scientific
tests which Bender, Whitehurst's technician, and not Whitehurst,
had conducted on the items of actual evidence.

Discussions of the information provided in the Whitehurst
memorandum among Unit Chief Corby, former Unit Chief J.
Christopher Ronay, and Scientific Analysis Section (SAS) Chief
James Kearney did not result in any instruction to Hahn to
consider the memorandum as a supplementary "report."
The draft report makes clear that Kearney, Corby, and Ronay knew
about Whitehurst's memorandum, had discussed it among themselves,
and did not relay to Hahn any concerns they may have had in this
regard. Hahn was left with a document that he justifiably did not
consider a Laboratory report, which discussed speculations
appearing to be a defensive reaction to the
"confession" of Arete (which was not even introduced
into evidence at trial) but contained no reported results of
actual chemical tests done on the specimens involved. If Kearney,
Corby, and Ronay were aware of the document and as managers
failed to convey its status to Hahn, then Hahn is not to be
faulted for disregarding its value to the trial proceedings.

E. Other Matters

1. VanPac

Whitehurst alleged that Tom Thurman and Roger Martz violated
FBI policies and procedures, fabricated evidence, perjured
themselves, and obstructed justice, and that then-prosecutors
Louis Freeh and Howard Shapiro engaged in prosecutorial
misconduct. [Part Three, Section B at 1.] The OIG found no
misconduct by any of these individuals. [Id. at 2, 29.] The OIG
did, however, conclude: (1) that Martzs testimony regarding
his comparison of smokeless powder samples was ambiguous; [Id. at
24.] and (2) that Robert Webb, the examiner who analyzed the
packaging tape, black paint, RTV sealant and glue found in the
bombs, overstated his conclusions. [Id. at 15.]

OIG Finding Regarding Martz: Martzs testimony
on direct examination that he had been unable to
"successfully compare" powder from the bombs with
powder obtained from the Shootin Iron Gun Shop sometime
after the defendant had bought powder there was
"ambiguous." [Id. at 23-24. The draft report
further concludes, however, that Martz did not suppress
exculpatory information regarding his comparison. Id. at 24.]

Response: The draft reports characterization of
Martzs trial testimony appears erroneous, and should be
deleted. Contrary to the OIG's findings, we believe an
examination of Martzs trial testimony in VanPac reveals
that he did not testify ambiguously and instead that he
truthfully answered the questions put to him. Martz was asked:
"Were you asked to compare the four specimens in front of
you with the off-the-shelf can?" and he replied that he was.
Martz was then asked, "Did you do that?" and he
responded that he did. The next question was "Could you
determine anything at that point?" to which Martz replied,
"No, I was not able to determine it," and went on to
explain why. [Transcript at 1933. ]

This excerpt from the trial transcript in VanPac demonstrates
that Martz simply answered the questions that were posed to him.
Even if those questions were not as direct or artful as they
might have been, that lack of clarity should not now be
determined to be Martzs fault. Moreover, when Martz was
specifically asked on cross-examination whether he could
determine from his comparison of the powder samples whether they
came from thesame batch, he answered that specific question
truthfully, and said that he could not: Q. "They were both
the Red Dot [powder] but you could not determine from your
comparisons that they came from the same batch?" A. "I
was trying to determine if they came from the same batch and I
was not able to." [Id. at 1950.] Thus, Martz expressly
acknowledged the limits of his examination, and did not, even
unintentionally, fail to provide the jury with complete and
accurate information.

OIG Finding Regarding Webb: Webb overstated his
conclusions.

Response: The draft report also concludes that Robert
Webb, a former examiner in the Laboratory, overstated his
findings in the VanPac case. [Part Three, Section B at 15.] Based
on that conclusion, the draft report recommends that any analysis
by Webb be reviewed by another qualified examiner if used in
future cases. [Part Five at 16.] We submit that the OIG should
consider whether these findings are overly critical and
potentially inaccurate in light of information provided to us.
First, it is unclear whether the OIG is aware of all of the tests
performed by Webb in VanPac. The draft report states that Webb
conducted "microscopic examination, so-called wet
chemical analyses, analysis with fourier transform infrared
spectroscopy (FTIR), and pyrolysis gas chromatography
(PGC)." [Part Three, Section B at 14.] However, Webb
informed us that he also examined the items at issue using
"polarized light microscopy" (PLM), a technique that
could permit a determination whether two items came from the same
batch or lot.

Second, it is our understanding that the tests that the draft
report does identify would be sufficient to allow an examiner to
determine whether two items came from the same manufacturer.
[Contrary to Whitehurst  s allegations, those tests have
been validated by both internal and external proficiency testing.
We note that the draft report apparently disagrees with
Whitehurst  s assertion that " data do not exist to
allow one to say that two samples with a similar chemical
composition necessarily came from the same source, " since
the report specifically recognizes that a determination of origin
may be possible with sufficient information. Id. at 16 n.8.
However, the report never expressly refutes Whitehurst  s
claims.] The report does not take a firm position on this, but
merely questions Webbs views regarding the efficacy of the
tests. [Id. at 15.]

The draft report appears to reflect a misunderstanding of the
nature and use of the FBIs databases to evaluate whether
two items have a common origin. It is true that, at the time of
the VanPac case, neither Webb nor the FBI had a database that
would confirm thatmaterials like those involved in the samples
"did in fact differ among manufacturers in terms of their
chemical composition and physical characteristics." [Id. at
15.] No such database exists. While the FBI does have some
databases and reference files with respect to certain items (such
as automotive paints and tape), those resources merely allow an
examiner to determine what, if any, characteristics an
unidentified sample has in common with known samples. The
ultimate comparison and determination whether the two samples are
from the same source is made by the examiner, based on all of the
information available, including such factors as the color and
texture of the item.

Finally, the draft report states that questions regarding
differences in certain of Webbs test results could not be
resolved because documents were missing from some of the case
files. [Id. at 16-17.] We do not believe that it is appropriate
for the OIG to intimate there were deficiencies in Webbs
analysis [Id. at 17.] and make a negative finding against him
[Part Five at 16.] when documents that the OIG claims to need to
resolve this issue are not available. For all of these reasons,
we request that the finding regarding Webb be reassessed.

2. O. J. Simpson

OIG Finding: Roger Martz was not adequately prepared
and did not exhibit the proper demeanor at trial.

Response: Whitehurst alleged that after Martz testified
in the Simpson criminal case, scientists at the Forensic
Science Research Unit (FSRU) claimed that he had committed
perjury by testifying that he had developed the method used to
examine the blood evidence. Whitehurst also alleged that Martz
misled the jury concerning the FSRUs validation studies and
events surrounding the protocol, misled the defense by stating
that all digital data from the analysis of the evidence had been
erased, and generally testified in an arrogant manner. The OIG
found that there was no basis to conclude that Martz committed
perjury or misled the jury or defense, or that he improperly
erased digital data. The draft report does, however, conclude
that Martz lacked adequate preparation and had deficient
note-taking and record-keeping practices. In the draft, the OIG
also expresses its own dissatisfaction with certain
non-substantive aspects of Martz's trial presentation and
demeanor.

We object to the draft report's criticism of Martzs
trial presentation, [Part Three, Section F at 15-16.] and request
that it be deleted. The characterization of Martz as
"ill-at-ease" and "defensive" appears to be
well outside the scope of the OIG's inspection and inherently
subjective. Also, we do not believe this investigation subjected
any other examiners courtroom testimony to evaluation as to
"demeanor." To single out Martz in this regard is
unfair. To a great degree, "adroitness or
maladroitness" in a witness is in the eye of the beholder.
While we agree that it is fair for the draft report to comment on
the adequacy of note-taking and record keeping, the manner in
which these criticisms are portrayed in the draft appears to
obscure the most important finding regarding Martz's testimony in
the Simpson case -- that both his science and his
testimony were correct and reliable as to whether the blood
evidence from the rear gate and socks contained levels of EDTA
that were consistent with blood from the test tubes.

3. Paolo Borsellino

OIG Finding: Robert Heckman made several
misstatements during his trial testimony.

Response: Whitehurst alleged that Robert Heckman may
have testified outside his area of expertise and improperly
rendered an opinion concerning the explosives residue analysis.
[Part Three, Section H4 at 1.] The OIG rejected this claim and
concluded that Heckman did not testify outside his area of
expertise or improperly render an opinion in this case and that
Heckman's testimony was not unreliable due to his alleged failure
to consider potential contamination. The OIG, however, did
conclude that Heckman made several minor misstatements during his
testimony. Most of the discrepancies noted are relatively minor,
and we find the criticism of Heckman to be unwarranted in light
of the significance of the issues involved.

First, Heckman testified that it is increasingly common for
C-4 to be used commercially in quarry and mining operations. The
OIG found, however, that this is inaccurate because C-4 is not
used for such purposes due to expense. Heckman acknowledged to us
that C-4 is not used in quantity for this reason. His point,
however, was that ten (10) years ago C-4 was seldom used
commercially, whereas it is now more common to see C-4 used in
the commercial sector in quarry operations, mining, and building
demolition. During his testimony, Heckman was trying to indicate
that C-4 is no longer exclusively a military explosive, but that
it may also be found in some commercial contexts as well.

Second, Heckman testified that RDX usually appears as a solid
block but can be pulverized into a powder. The OIG found this
could be misleading because RDX initially is manufactured as a
powder. This criticism is not well founded. Heckman recognized
that RDX is initially manufactured as a powder but was trying to
convey that RDX is commonlyfound in block form. We do not believe
this rises to the level of an inaccuracy in his testimony.

Third, Heckman testified that most detonators use RDX in the
charge while the OIG found that PETN is most commonly used for
this purpose. Both PETN and RDX are frequently used for this
purpose, so again we do not believe this rises to the level of an
inaccuracy in Heckman's testimony.

Fourth, Heckman testified that the FBI had
"electronically" examined fragments of components and
determined that they were part of a transmitter/receiver. [The
OIG incorrectly refers to Heckman as "Higgins" when it
indicates that he acknowledged he was mistaken.] When Heckman
gave that testimony, he did not mean to say that the fragments
had been examined with electrical leads, but that the FBI did an
electronic analysis of the circuit to determine what electrical
components were in the circuit board fragments. While Heckman
could have been more precise in this testimony, characterizing
his testimony as inaccurate seems overly critical.

4. Gino Negretti

OIG Finding: Alan Jordans testimony contained
one minor inaccuracy.

Response: We believe that the draft report contains a
number of misstatements regarding Alan Jordan's testimony in
court and his interview with investigators. Most significantly,
the OIG's draft report incorrectly states that Jordan's testimony
was "inaccurate" when it more properly should be said
that he could have been "more accurate" in discussing
whether the residue found was "identified" or
"consistent with" RDX. At trial, Jordan was not asked
to state exactly what Whitehurst found. Instead, Jordan was asked
"did Mr. Whitehurst send back a positive chemical analysis
on this piece of evidence?" and Jordan responded that
Whitehurst found residues "consistent with RDX and
HMX." [Part Three, Section H5 at 4.] "Consistent
with" is certainly more conservative than the term
"identified," and it is unduly harsh to characterize
this as an inaccurate or incorrect statement. In fact, if there
were any effect from Jordan giving a more conservative response,
it favored the defense, not the prosecution.

Furthermore, this exchange is taken out of context and the
language in the draft report is unnecessarily critical given the
context in which Jordan was testifying. In particular, the OIG's
statements regarding how Jordan understated Whitehurst's reported
results should be modified. [Id. at 6 n.4.] Prior to the
excerpted section, Jordan had been asked questions on
directexamination regarding the use of boosters and whether the
explosion, the damage, and the chemicals found were consistent
with a booster having been used. It is in this context, i.e.,
whether the residues could indicate that a booster was used, that
Jordan used the phrase "consistent with."

In the draft report, the OIG indicated that Jordan
"doubted whether a low explosive could have caused the type
of damage Jordan had observed in certain pipe fragments."
[Id. at 2.] Jordan indicated to us that he never said that he
"doubted" whether a low explosive could have caused the
type of damage observed. Instead, Jordan told the OIG it was his
opinion that the damage could not have been caused by a low
explosive. That is why he asked Whitehurst to re-examine other
items for possible high explosives residue. Based on his
experience, knowledge, and training, Jordan formed the opinion
that the damage he observed simply could not be from a low
explosive.

Finally, the OIG's statement that "we find no basis to
conclude that Jordan colluded with counsel to prevent Whitehurst
from testifying" is unnecessarily inflammatory. [Id. at 8.]
There is no allegation in the draft report that Jordan colluded
with counsel. The allegation as reported in the introduction is
directed against the prosecutor, not Jordan. This sentence
should be re-phrased to more accurately address the allegation
and should not erroneously suggest that there was an allegation
of collusion directed at Jordan when, in fact, there was none.

5. Conlon

OIG Finding: Robert Heckman made improper additions
to Whitehurst's dictation.

Response: Whitehurst alleged that Heckman made
unauthorized additions to his dictation. While the OIG noted that
Heckman was apparently motivated by a desire to provide more
helpful information, the OIG agreed that Heckman made improper
additions to Whitehurst's dictation by adding statements outside
his area of expertise to the section designated
"Instrumental Analysis." [Part Three, Section H6 at 1,
8.] The OIG rejected the idea, however, that Heckman purposefully
tried to mislead the reader concerning the authorship of the
questioned paragraphs. [Id. at 9.]

In our discussions with Heckman, he conceded that he has no
knowledge of Ion Mobility Spectrometer (IMS), and that it would
be inappropriate for him to make comments regarding IMS results.
[As noted by the OIG, Heckman also acknowledged that he should
not have placed the paragraphs under the "Instrumental
Analysis" section without somehow distinguishing his
additions from Whitehurst's dictation.] He maintained, however,
that he was not inserting his own impressions but was merely
paraphrasing Whitehurst in an attempt to make the report
"more understandable."

In light of these comments, we think the draft report
mischaracterizes the nature of Heckmans additions and the
basis for their inclusion in the report. First, Heckman was not
"add[ing] his own observations about the IMS results from
the explosion scene." [Id. at 4.] Instead, after reading
Whitehurst's dictation, Heckman consulted with Whitehurst and, in
an attempt to make Whitehurst's report "more
understandable," added a section paraphrasing what
Whitehurst had indicated in their discussions. Heckman did not
add his own observations to Whitehurst's dictation but added a
summary of what Whitehurst had explained to him.

Second, the report refers to Heckman's attempt at
clarification as "improper" or "unauthorized"
additions. Given Heckman's intentions to help the contributor,
these characterizations of his actions appear unnecessarily
critical.

6. Judge John Shaw

OIG Finding: The analysis performed by the
Laboratory may not have identified all substances present in the
bomb.

Response: Whitehurst alleged that Ronald Kelly prepared
a report that identified smokeless powder in a pipe bomb sent to
federal judge John Shaw and that the analysis was flawed because
it did not determine if materials other than smokeless powder
were present in the bomb. The OIG concluded that the analysis
performed may not have identified all substances present in the
bomb, and that Laboratory personnel had different understandings
concerning applicable protocols for this type of analysis. [Part
Three, Section H7 at 1, 5.]

The OIG's findings create the false impression that the
Laboratory failed to follow up on important evidence. While it is
fair to say that "[i]t is conceivable . . . that some other
inorganic materials were present which, if not identified in the
microscopic examination, might also have escaped detection
through the GC/MS and FTIR analyses that Kelly performed,"
[Id.] Kelly's microscopic examination did not detect the presence
of inorganicmaterial on smokeless powder. That microscopic
examination would have revealed significant other material and
would have alerted Robert Heckman to have Steve Burmeister do
further work. There was nothing to suggest that such additional
testing was necessary in this case.

7. The FBIs Office of Professional Responsibility and
Office of the General Counsel

a. Office of Professional Responsibility (OPR)

The OIGs draft report addresses a number of different
investigations conducted by the FBI's Office of Professional
Responsibility (OPR). As an initial matter, we note that in the
summary of Whitehursts allegations, the report states that
OPR "advised" Terry Rudolph that its inquiry had not
developed facts warranting any administrative action. [Part Two
at 16.] The report later states that OPR "concluded"
that the evidence did not warrant administrative action, and did
not support Whitehursts claims. [Part Three, Section A at
17-18.] This characterization of OPRs conduct suggests a
lack of understanding of OPRs role within the FBI. OPR
investigates allegations of employee misconduct; it neither draws
nor offers any conclusions based on its investigations, and it
does not advise employees whether action will be taken. Rather,
OPR makes its investigation available to the Administrative
Summary Unit for evaluation and, ultimately, adjudication. To the
extent the draft report suggests some other process, it must be
corrected.

With respect to specific findings by the OIG, the draft report
addresses an investigation conducted by OPR in 1991 regarding
allegations made by Whitehurst against Terry Rudolph. The OIG
concludes that OPR should have conducted further investigation
with respect to Whitehursts claim that Rudolph committed
perjury in an unidentified case in the Southwest. [Id. at 19.]
However, in reaching that conclusion, the OIG implies that the
only investigation conducted by OPR with respect to that claim
was to interview Whitehurst and Rudolph. In fact, we have been
informed that even though Rudolph denied Whitehurst's allegation,
OPR interviewed other individuals as well, none of whom could
corroborate Whitehurst's assertion that Rudolph had talked about
perjury or that Rudolph had committed such an act. Moreover, the
OIG incorrectly suggests that a review of a transcript of
Rudolph's testimony would necessarily disclose whether he had
perjured himself. [Id. at 20.] OPR properly exercised its
discretion not to expend further resources to investigate a
nebulous allegation.

The OIG also concludes that OPR should have further
investigated an incident involving Whitehursts wife, Cheryl
Whitehurst, and Kenneth Neu to ensure that Neus supervisors
had addressed the matter with him. [Part Four, Section B at
12-13.] In reaching that conclusion, the OIG fails to give
sufficient weight to Cheryl Whitehursts statement to OPR
that Neus supervisors were in fact aware of the incident.
[We note that, in quoting Cheryl Whitehurst  s sworn
statement to OPR, the OIG omits the paragraph in which she
describes how she became aware that Neu  s supervisors had
been notified of the incident. Id. at 12. That omission is
misleading because the OIG fails to indicate, through ellipses or
other punctuation, that the paragraph had been deleted.] Given
that fact and given also that the incident involved a minor
conflict between colleagues, not employee misconduct, OPR was
justified in determining that the appropriate personnel had been
notified of the incident and that no further investigation was
required.

b. Office of the General Counsel (OGC)

In the analysis of the FBI's publication of the UNABOM
article, the OIG includes a gratuitous finding regarding a
statement in an October 5, 1995 letter from Inspector-Deputy
General Counsel James M. Maddock. [Part Three, Section H9 at 5-6,
8.] In that correspondence, Maddock forwarded to the OIG a copy
of a memorandum prepared by Thomas J. Mohnal for Criminal
Division trial attorney Tom Roberts which responded to
allegations raised by Whitehurst. Mr. Maddock advised the OIG:

Based on my discussions with Mr. Mohnal, Mr. Roberts has
apparently concluded, after reviewing the memorandum, that Mr.
Whitehursts allegations are unsubstantiated. This
information is being provided because it bears on the credibility
of Mr. Whitehurst and also illustrates the disruptive impact that
his allegations have had on FBI operations.

The draft report finds that "the OGC was not justified in
concluding, . . . that Roberts' conclusions bore on Whitehurst's
credibility and Whitehurst's disruptive effect on the FBI."
[Id. at 8.] We find this to be an unfair criticism. Maddock was
transmitting information he believed may be relevant to the OIG's
ongoing investigation concerning the voluminous accusations
Whitehurst had made concerning the FBI Laboratory. Maddock,
however was not making any finding regarding credibility in his
letter but was only providing potentially useful information to
the OIG to facilitate the investigation. In any event, we note
the OIG's draft report finally concludes that "Whitehurst
appears to lack the judgment and common sense necessary for a
forensic examiner . . . [and] . . . we do not think that
Whitehurst caneffectively function within the Laboratory."
[Part Five at 36.] Implicit in this determination is a finding
regarding Whitehurst's credibility.

The draft report acknowledges, as Maddock's October 1995
letter implied, that Whitehurst's reckless charges of perjury,
fabrication of evidence, conspiracy, and suppression of documents
evidenced a serious lack of judgment on Whitehurst's part [Id. at
33.] that contributed to a disruptive and "uncooperative
atmosphere" in the Laboratory. [Part Three, Section H6 at
12.] As the draft report indicates, "[p]artly as a result of
the sweeping accusations Whitehurst has made against others, it
has become increasingly difficult for him to work with examiners
in the EU and other units of the Laboratory." [Id. at 36.]
The OIG, therefore, recognizes, as Maddock observed in his
letter, that Whitehurst's "sweeping accusations" did
indeed have a "disruptive effect" in the Laboratory.

We recommend, therefore, that the reference to Maddock and the
October 5, 1995 letter be removed as serving no useful purpose.